kelsen's theory of the basic norm

K E L S E N ' S T H E O R Y O F T H E B A S I C N O R M

Joseph Raz

O F ALL THE VARIOUS DOCTRINES of Kelsen's legal philosophy it was his theoryof the basic norm that succeeded most in attracting attention and capturing theimagination. It acquired enthusiastic devotees as well as confirmed opponents.Both admirers and critics owe much to the obscure way in which Kelsen explainshis theory. The obscurity was criticized and led people to suspect that the wholetheory is a myth; but it also provided admirers trading on ambiguities an easyescape from criticism. In the following pages yet another attempt to demy-thologize the theory will be made. An explanation of the concept of the basicnorm as Kelsen's attempt to provide an answer to some well-known jurispru-dential problems will be offered. It will be further claimed that the attempthas failed, but that its failure is illuminating. It sheds light on the intricacies ofthe problems involved and on their possible solutions.

Criticism will follow the exposition. The exposition, however, cannot befaithful to all the relevant texts. Some ambiguities and even contradictionscannot be eradicated by interpretation, however ingenious. Not wishing to tracethe development of the theory or to present an exhaustive discussion of all thetexts, the strategy adopted will be always to prefer the more interesting of twoconflicting interpretations, and to disregard the rest. The theory will be examinedin relation to the problems it was designed to solve. It stands or falls accordingto its success in dealing with them. Kelsen regards the concept of the basic normas essential to the explanation of all normative systems, moral as well as legal.Only his use of the concept in legal theory will be examined here.

I

According to Kelsen's theory it is logically necessary that in every legalsystem there exist one basic norm. The basic norm can be said to exist forKelsen says that it is valid,1 and validity is the mode of existence of norms.2

This does not mean that all basic norms are identical in content. Indeed, notwo basic norms can have the same content. They are all called basic normsnot because of their content but because they all share the same structure, thesame unique position each in its own system, and because they all perform thesame functions.

Kelsen postulates the existence of basic norms because he regards them as

1 For example, GT 111. PTL 194. In referring to Kelsen's books the following ab-breviations are used: GT for The General Theory of Law and State (New York: 1945);PTL for The Pure Theory of Law, 2nd ed. (Berkeley: 1967); TP for Theorie Pure de Droit(Paris: 1962) (this is the French translation of PTL); WJ for What Is Justice? (Berkeley:1960).

* GT 30; WJ 214, 267.

94

by guest on September 25, 2014

http://ajj.oxfordjournals.org/D

ownloaded from

http://ajj.oxfordjournals.org/

JOSEPH RAZ 95

necessary for the explanation of the unity and normativity of legal systems. Alegal system is not a haphazard collection of norms. It is a system because itsnorms, as it were, belong together. They are interrelated in a special way. Kelsenaccepts two propositions which he considers too self-evident to require anydetailed justification. They can be regarded as axioms of his theory. The firstsays that two laws, one of which directly or indirectly authorizes the creationof the other, necessarily belong to the same legal system.3 For example, a crimi-nal law enacted by parliament and a constitutional law authorizing parliamentto enact criminal laws belong to one legal system just because one of them au-thorizes the creation of the other. The second axiom says that all the laws of alegal system are authorized, directly or indirectly, by one law.

It follows from the second axiom that two laws, neither of which authorizesthe creation of the other, do not belong to the same system if there is no lawauthorizing the creation of both. It follows from the first axiom that if one lawauthorizes the creation of another or if both are authorized by a third law thenboth belong to the same legal system. Thus the two axioms provide a criterionfor the identity of legal systems and make it possible to determine with regardto any law whether it belongs to a certain legal system or not.4

Assuming, as I think one should, that Kelsen is trying to elucidate thecommon concept of the legal system and is not simply using the term to introducea completely different concept, the second axiom looks on the face of it like anempirical generalization. To ascertain its truth one will have to examine alllegal systems and find whether there is in each one a law authorizing the crea-tion of the rest. Is there, e.g., a law in Britain authorizing both parliament andthe common law? This problem is implicitly recognized by Kelsen in the follow-ing passage:

If a legal order has a written constitution which does not institute custom as aform of law creation, and if nevertheless the legal order contains customarylaw besides statutory law, then, in addition to the norms of the written constitu-tion, there must exist unwritten norms of constitution, a customarily creatednorm according to which the general norms binding the law applying organscan be created by custom. (GT 126)

In such a legal system there will be no positive law authorizing all the rest.Some laws will be authorized by the customary constitution, whereas others willbe authorized by the enacted constitution, and there will be no positive lawauthorizing both constitutional laws. Kelsen, therefore, is aware that as anempirical generalization, his second axiom is false. He overcomes this problemby postulating that there is in every system one nonpositive law—a law whichauthorizes all the fundamental constitutional laws and the existence of whichdoes not depend on the chance action of any law-creating organ, but is a logicalnecessity. These laws are the basic norms of legal systems and their existence isnecessary for the truth of the second axiom; they make it a logical truth. Since

3 A law authorizes indirectly the creation of another if and only if there is a third lawauthorised, directly or indirectly, by the first and authorizing the second.

* For Kelsen's criterion of identity of legal systems see GT 111, PTL 195.



ownloaded from


96 THE AMERICAN JOURNAL OF JURISPRUDENCE

Kelsen's criterion of identity of legal systems depends on the truth of the secondaxiom it also depends on the theory of the basic norm.

This is one line of argument which Kelsen implicitly uses to prove thenecessary existence of a basic norm in every legal system. Kelsen has a differentand independent argument which he employs to reach the same conclusion.It aims to show that only the basic norm can explain the normativity of the law.

All laws are created by human actions, but human actions are facts andthey belong to the realm of the "is," whereas laws are norms and belong to therealm of the "ought." It is another of Kelsen's unquestioned beliefs that thereis an unbridgeable gap between the "is" and the "ought"; that norms cannotderive their existence from facts. This can be regarded as a third axiom of histheory. He says:

Nobody can assert that from the statement that something is, follows a state-ment that something ought to be. (PTL 6)

Therefore, he concludes:

. . . the objective validity of a norm . . . does not follow from the factual act,that is to say, from an is, but again from a norm authorizing this act, that is tosay from an ought. . . . (PTL 7-8)5

The principle of dichotomy, of the unbridgeable gap between the "ought"and the "is" entails the principle of the autonomy of norms. Norms exist onlyif authorized or entailed by other norms. In the law the autonomy of the legalnorms is secured by the fact that they are all links in what may be called chainsof validity. The term is not used by Kelsen, but the idea is essential to his phi-losophy. He explains it as follows:

To the question why this individual norm is valid as part of a definite legalorder, the answer is: because it has been created in conformity with a criminalstatute. This statute, finally, receives its validity from the constitution, since ithas been established by the competent organ in the way the constitution pre-scribes. If we ask why the constitution is valid, perhaps we come upon an olderconstitution. Ultimately we reach some constitution that is the first historicallyand that was laid down by an individual usurper or by some kind of assembly. . . .It is postulated that one ought to behave as the individual, or the individuals,who laid down the constitution have ordained. This is the basic norm of thelegal order under consideration. (GT 115)6

Thus, though every law is created by human action, it derives its validitynot from the act, but from another law authorizing its creation. Ultimately allpositive laws owe their validity to a nonpositive law, a law not created by humanaction. Only a nonpositive law can be the ultimate law of a legal system; onlyit does not presuppose another norm from which it derives its normativity.This nonpositive law is the basic norm.

5 This principle is often repeated by Kelsen; see, e.g., "Value Judgment" in WJ 218.6 Cf. PTL 199f. On Kelsen's concept of chains of validity see further Raz, The Conceptof a Legal System (Oxford: 1970), pp. 97-9. Two chains of validity linked together by acommon link are regarded as parts of one chain.



ownloaded from


JOSEPH RAZ 97

The idea of a chain of validity is central to Kelsen's solutions of the prob-lems of normativity and unity of the legal system. Two laws belong to one chainof validity if one authorizes the other or if there is a third law authorizing both.The unity of the legal system consists in the fact that all its laws belong to onechain of validity and all the laws of a chain of validity are part of the samesystem. The normativity of laws is assured by the fact that each of the laws ina chain derives its validity from the one before it. The basic norm is essentialto the solution of both problems. It provides the nonfactual starting pointessential to the explanation of the normativity, and it guarantees that all thelaws of one system belong to the same chain of validity.

The functions assigned to the basic norm explain its content and its specialstatus. It must be a nonpositive norm. Basic norms are not enacted, nor are theycreated in any other way. It is presupposed by legal consciousness, but Kelsenmakes it clear that it is not created by being presupposed.7 Nor is it created by theacts of enacting other laws,8 or by the recognition by the population of a duty toobey the law,9 as some commentators assumed. It does not make sense withregard to any basic norm to ask when was it created, by whom or how. Thesecategories simply do not apply to it. Nevertheless, they can be said to exist,for they are valid, and despite their uniqueness basic norms are part of the law,for they perform legally relevant functions.10

For them to explain the normativity and unity of a legal system, basicnorms must authorize the creation of the laws of the various legal systems. Thusthe functions of the basic norm account for its structure. It is an authorizingnorm. It

qualifies a certain event as the initial event in the creation of the various legalnorms. It is the starting point of a norm creating process. (GT 114)

The basic norm of any positive legal order confers legal authority only uponfacts by which an order is created and applied which is on the whole effective.(GT 120)

The basic norm is a power-conferring law. Kelsen, however, formulates it asduty imposing: ". . . the basic norm . . . must be formulated as follows: Coer-cive acts ought to be performed under the conditions and in the manner whichthe historically first constitution, and the norms created according to it, pre-scribe. (In short: One ought to behave as the constitution prescribes.)" (PTL200-1) It is always possible to describe every law conferring legislative powersby saying that it imposes a duty to obey the laws made by the authorized organ.11

This possibility should not obscure the nature of the law as power conferring.The basic norm will, therefore, be regarded as conferring legislative power onthe authors of the first constitution.

* PTL 204.8 TP 271.9 PTL 218n.i« "Professor Stone and the Pure Theory of Law," Stanford Law Review, 17, Vol. 2 (1965),

p. 1128. 1141.11 See further on this subject, The Concept of a Legal System, pp. 21, 23, 166f.



ownloaded from



The formulation given by Kelsen in the quoted passage is not of any partic-ular basic norm of any legal system. It merely exhibits the structure commonto all basic norms. The content of basic norms varies according to the facts ofthe systems to which they belong. Kelsen explains that the content of a basicnorm "is determined by the facts through which an order is created and applied."(GT 120)

II

Kelsen's doctrine of the unity of legal systems fails for two independentreasons. As I have discussed them rather extensively elsewhere,12 the followingdiscussion will be brief. His doctrine depends on the first two axioms explainedabove. It is not difficult to see that both axioms must be rejected.

The first axiom asserts that all the laws belonging to one chain of validityare part of one and the same legal system. If this axiom were correct, certainways of peacefully granting independence to new states would become impos-sible. Suppose that country A had a colony B, and that both countries weregoverned by the same legal system. Suppose further that A has granted inde-pendence to B by a law conferring exclusive and unlimited legislative powersover B to a representative assembly elected by the inhabitants of B. Finally, letit be assumed that this representative assembly has adopted a constitution whichis generally recognized by the inhabitants of B, and according to which electionswere held and further laws were made. The government, courts, and the popula-tion of B regard themselves as an independent state with an independent legalsystem. They are recognized by all other nations including A. The courtsof A regard the constitution and laws of B as a separate legal system distinctfrom their own. Despite all these facts it follows from Kelsen's first axiom thatthe constitution and laws of B are part of the legal system of A. For B's con-stitution and consequently all the laws made on its basis were authorized by theindependence-granting law of A and consequently belong to the same chain ofvalidity and to the same system.

Kelsen's mistake is in disregarding the facts and considering only the con-tent of the laws. For his theory the only important fact is that the legal systemof A has a law authorizing all the laws of B. That the courts and population ofB do not consider this law as part of their own legal system is irrelevant. Butthe attitude of the population and the courts is of the utmost importance indeciding the identity and unity of a legal system in the sense in which this con-cept is commonly used.13

This criticism does not directly affect Kelsen's theory of the basic norm.However, if the doctrine of the unity of legal systems is rejected, one of thereasons for accepting the theory of the basic norm disappears. Kelsen's theoryof the unity and identity of legal systems is vitiated by a second flaw whichdirectly concerns the role of the basic norm.

12 Ibid., pp. 100-109.13 The same point is made in H. L. A. Hart, "Kelsen's Doctrine of the Unity of Law,"

published in H. E. Kiefer and M. K. Munitz (eds.). Ethics and Social Justice (New York:1970.)



ownloaded from


JOSEPH RAZ 99

The second axiom on which his theory of the identity and unity of thelegal system depends says that all the laws of one system belong to one chainof validity. When discussing this axiom we saw that Kelsen admits, at least byimplication, that disregarding the basic norm, all the positive laws of a systemmay belong to more than one validity chain. Some may owe their validity to acustomary constitution while others derive their validity from an enacted con-stitution. It is only the basic norm that unites them in such a case in one chainof validity by authorizing both constitutions.14

A legally minded observer coming to such a country and wonderingwhether the enacted and the customary constitutions belong to the same legalsystem will be referred by a Kelsenite to the basic norm. It all depends, he willbe told, whether or not there is one basic norm authorizing both constitutions orwhether each constitution is authorized by a different basic norm. Being told inanswer to further questions that to know the content of the basic norm heshould find out "the facts through which an order is created and applied,"(GT 120) for they determine it, he may very well be driven to despair. Itseems that he can only identify the legal system with the help of the basic normwhereas the basic norm can be identified only after the identity of the legalsystem has been established. Even if our diligent observer succeeds in establishingthat at least two sets of norms are effective in the society, one, a set of customarynorms, the other, of enacted norms, there will be nothing a Kelsenite can sayto help him decide whether or not they form one system or two. There is nothingin the theory to prevent two legal systems from applying to the same territory.Everything depends on the ability to identify the basic norm, but it cannot beidentified before the identity of the legal system is known. Therefore, the basicnorm cannot solve the problem of identity and unity of legal systems, andKelsen has no other solution.

I l l

If the previous criticism is correct the case for the basic norm must rest onits function in explaining the normativity of the law. It is with this problemthat the rest of the paper will be concerned.

The role of the basic norm in explaining the normativity of law, and indeedKelsen's explanation of that normativity, is closely connected with his critiqueof natural law theories. He conceived his own theory as an alternative, the onlypossible alternative to natural law. Kelsen even refers to the basic norm as anatural law.15 This is not the place to examine in detail Kelsen's critique ofnatural law theories, but a few remarks on some of the key ideas are essential tothe understanding of his theory of the basic norm.

According to Kelsen's account, natural law theories claim that there is a

14 It should be noted that the basic norm in such cases is said to authorize several con-stitutional laws created by several norm-creating acts. It is not clear in what sense a basicnorm doing this is itself one norm rather than a conjunction of several norms.

15 "If one wishes to regard it (i.e., the basic norm—J.R.) as an element of a natural lawdoctrine . . . very little objection can be raised. . . . What is involved is simply the minimum. . . of natural law without which a cognition of law is impossible." (GT 437)



ownloaded from



set of norms, discoverable by reason, which have absolute and objective validity.They are completely and objectively just and good. Positive law, insofar as it isvalid, derives its validity from natural law. It is valid to the extent that thenatural law pronounces it just and good. Statutes, court decisions, etc., whichare contrary to natural law are not valid and hence not laws at all. Kelsencorrectly points out that according to natural law theories there is no specificnotion of legal validity. The only concept of validity is validity according tonatural law, i.e., moral validity. Natural lawyers can only judge a law as morallyvalid, that is, just or morally invalid, i.e., wrong. They cannot say of a law thatit is legally valid but morally wrong. If it is wrong and unjust, it is also invalidin the only sense of validity they recognize.16

Kelsen has four major reasons for rejecting all natural law theories. Theyare burdened with objectionable metaphysics, they are conceptually confused,they thrive on moral illusion, and they are unscientific.

1) Natural law theories presuppose the dualistic metaphysics which hasbedeviled the Western world since Plato.17 They presuppose an ideal reality ofcompletely just and good laws enjoying some form of objective existence inde-pendent of human acts or will which is contrasted with the imperfect socialreality of man-made statutes, regulations, and decisions. The latter are imper-fect and less real than the former, and whatever reality they have is due to theideal reality. Only by imitating the ideal laws do human laws acquire validity.Kelsen is very much opposed to this kind of metaphysics and rejects it in favorof the antimetaphysical flavor of Kant's critical philosophy. Rejecting thismetaphysical dualism deprives natural law theories of their metaphysical foun-dation.

2) Natural law theories are conceptually confused. They are of twovarieties, one secular, and the other religious. The secular theories regard naturallaws as rationally binding and self-evident in themselves. The religious theoriesregard them as the commands of God revealed to man through rational specu-lation about nature.18 Both varieties commit the naturalistic fallacy of derivingan is from an ought. Whatever is natural can only be a fact, and God's com-mands are also facts, even if divine facts, and from facts no norm is entailed.To avoid the naturalistic fallacy both types of natural law theories must beassumed to postulate a basic norm investing the facts with normative character.19

The secular basic norm is that nature be obeyed, the religious basic normdictates that God be obeyed.20 The basic norms must be considered self-evident.They cannot be derived from any other norm, yet they are said to be objectivelyvalid and binding. In this way Kelsen attempts to rectify the confusions com-mitted by the proponents of the natural law.

1 6 For example, WJ 144, 257ff., 295.1 7 Cf. GT 419-433; WJ 198ff. Kelsen is not rejecting the possibility of regarding laws as

abstract entities provided they are given adequate interpretation relating them to humanbehavior. Such a doctrine does not have the metaphysical implications of Platonism.

1 8 For the explanation of the two types of natural law theories, see, e.g., WJ 285ff.1 9 WJ 141.20 WJ 258, 26Of.



ownloaded from


JOSEPH RAZ 101

3) "The doctrine is a typical illusion, due to an objectivation of sub-jective interests." (WJ 228) On Kelsen's analysis the natural law's claim toobjective validity rests on the assumption that its basic norms are self-evident.Kelsen rejects all such claims as illusions. He is a moral relativist.21 No moralposition can be objectively proved and defended. There are no intuitively truemoral beliefs.22 Moral opinions are matters of personal preferences. By claim-ing objective validity, natural lawyers breed illusions and use them for variousideological purposes. Most commonly the natural law illusion has been used byconservative optimists to justify existing legal and political institutions. Occa-sionally the same illusion has been turned into a tool for promoting reform orrevolution.23

Kelsen's relativism does not preclude the possibility or necessity of assessingthe law by moral standards. He simply insists that every evaluation is valid onlyrelative to the particular moral norm used which in itself has no objectivevalidity. Consequently moral criticism or justification of the law is a matterof personal or political judgment. It is not an objective scientific matter anddoes not concern the science of law.24

4) By condemning natural law theories as unscientific Kelsen means thatthey cannot be objectively confirmed. Therefore, Kelsen's desire to construct ascientific theory of law leads him to renounce the morality of the law as a sub-ject of the theory. "The problem of law as a scientific problem is the problemof social technique, not a problem of morals." (GT 5) Legal theory is andshould be concerned with a special type of social technique for controlling humanbehavior. Natural law theories, by distinguishing between just statutes whichare law, and unjust ones which are not law, obscure the issue. For they therebyexclude some normative systems from being classified as legal, even though theyare instances of the use of the same social technique.

IV

To perform its task legal theory must be value free. Consequently itsexplanation of the normativity of law must be independent of the moral valueof the law. The validity of laws must be understood as legal, not moral validity.The basic norm is the reason of the validity of the law in the legal sense ofvalidity. How is the notion of legal validity and normativity to be explained?Kelsen resorts to the conceptual framework of Kantian critical philosophy. Kanthimself adopted a version of natural law theory only because he did not remaintrue to his own premises.25 His philosophy, however, provides the intellectualtools for ridding legal theory of its dependence on the notion of moral validity.

A legal concept of validity and normativity is made possible only throughthe concept of the basic norm:

21 Cf. WJ 141, 179f., 228f, 259, 295; PTL 64.22 PTL 221 .23 Cf. WJ 297.M Cf. WJ 295, 302; GT 4 3 6 ; PTL 68f.25 GT 444f. Kelsen's interpretation of Kan t can be disputed, but this need not concern

us here.



ownloaded from



To interpret these acts of human beings as legal acts and their products as bind-ing norms, and that means to interpret the empirical material which presentsitself as law as such, is possible only on the condition that the basic norm ispresupposed as a valid norm. The basic norm is only the necessary presuppositionof any positivistic interpretation of the legal material. (GT 116)

The basic norm is necessarily presupposed when people regard the law as nor-mative, irrespective of its moral worth:

. . . the basic norm as represented by the science of law may be characterised asthe transcendental-logical condition of this interpretation, if it is permissible touse by analogy a concept of Kant's epistemology. Kant asks: "How is it pos-sible to interpret without a metaphysical hypothesis, the facts perceived by oursenses, in the laws of nature formulated by natural science?" In the same way,the Pure Theory of Law asks: "How is it possible to interpret without recourseto meta-legal authorities, like God or nature, the subjective meaning of certainfacts as a system of objectively valid legal norms? . . ." The epistemologicalanswer of the Pure Theory of Law is: "By presupposing the basic norm thatone ought to behave as the constitution prescribes. . . ." The function of thisbasic norm is to be found in the objective validity of a positive legal order.(PTL 202)

The concept of the basic norm provides legal theory with an objective andvalue-free concept of legal normativity. "The presupposition of the basic normdoes not approve any value transcending positive law." (PTL 201) "It does notperform an ethical political but only an epistemological function." (PTL 218)

Not performing a moral or political function the basic norm is objective:

To the norms of positive law there corresponds a certain social reality, but notso to the norms of justice. . . . Juristic value judgments are judgments that canbe tested objectively by facts. Therefore they are admissible within a science oflaw. (W] 227)

The basic norm, therefore, is not the product of free invention. It is not pre-supposed arbitrarily in the sense that there is a choice between different basicnorms when the subjective meaning of a constitution-creating act and the actscreated according to this constitution are interpreted as their objective meaning.(PTL 201)

With the aid of the concept of a basic norm Kelsen claims he has establisheda value-free legal theory using a specific legal concept of normativity:

The postulate to differentiate law and morals, jurisprudence and ethics, meansthis: from the standpoint of scientific cognition of positive law, its justificationby a moral order different from the legal order, is irrelevant, because the taskof the science of law is not to approve or disapprove its subject, but to know anddescribe it. . . . The postulate to separate law and morals, science of law andethics means that the validity of positive legal norms does not depend on theirconformity with the moral order; it means that from the standpoint of a cog-nition directed toward positive law a legal norm may be considered valid, evenif it is at variance with the moral order. (PTL 68)



ownloaded from


JOSEPH RAZ 103

V

Thus far it has been established that Kelsen regards the concept of a basicnorm necessary to the understanding of law as a normative system, and that hethinks that only by using this concept can legal theory be value free and objectiveand avoid the blunders of natural law theories. Nothing has been said so farabout the nature of the normativity accruing to the law by virtue of the basicnorm. To this problem we must now turn.

Two conceptions of the normativity of law are current in the literature. Iwill call them justified and social normativity. According to the one view legalstandards of behavior are norms only if and insofar as they are justified. Theymay be justified by some objective and universally valid reasons. They may beintuitively perceived as binding or they may be accepted as justified by personalcommitment. On the other view standards of behavior can be considered asnorms regardless of their merit. They are social norms insofar as they are sociallyupheld as binding standards and insofar as the society involved exerts pressureon people to whom the standards apply to conform with them. Natural lawtheorists characteristically endorse the first view, positivists usually maintain thesecond view. The most successful explanation of the normativity of law in termsof the concept of social normativity is Hart's analysis in The Concept of Law,Theorists using the concepts of justified normativity claim that a legal systemcan be regarded as normative only by people considering it as just and endorsingits norms accepting them as part of their own moral views. Theorists using theconcepts of social normativity maintain that everyone should regard legal systemsas normative regardless of his judgment about their merits.

Much of the obscurity of Kelsen's theory stems from the difficulty in decid-ing which concept of normativity he is using. It will be claimed that:

(1) Kelsen uses only the concept of justified normativity.(2) According to him an individual can consider a legal system as normative

only if he endorses it as morally just and good.(3) Legal theory considers legal systems as normative in the same sense of

"normative" but in a different sense of "consider" which does not commitit to accepting the laws as just.

Let us consider the first statement first. Quite often Kelsen considers a conceptof social normativity only to reject it as not being really a concept of normativityor at any rate not being appropriate for legal theory. Thus he distinguishesbetween a subjective and an objective "ought,"26 claiming that legal norms areobjective norms, explained by the concept of an objective "ought." His subjective"ought" is a variety of social normativity. Connected with this distinction is hiscomparison between objective and subjective value judgments. The latter are anexplication of one type of social normativity and are judged by him to be factualrather than normative judgments:

26 For example, PTL 7. Here as elsewhere when Kelsen examines and rejects the con-cept of social normativity he considers only crude explanations of it. Social normativity cannotbe explained in terms of efficacious commands.



ownloaded from



The value constituted by an objectively valid norm must be distinguished fromthe value that consists (not in the relation to a norm, but) in the relation of anobject to a wish or will of an individual directed at this object. If the object isin accordance or not in accordance with the wish or will, it has a positive ornegative value. . . . If the judgement describing the relation of an object to thewish or will of an individual, is designated as a value judgement . . . then thisvalue judgement is not different from a judgement about reality. For it describesonly the relation between two facts, not the relation between a fact and anobjectively valid norm. . . . The value that consists in the relation of an object. . . to the wish or will of an individual can be designated as subjective value.(PTL 19-20)

Describing laws as commands of a sovereign is, on this theory, describingthem as subjective "ought." If one does not presuppose the basic norm, thenjudgments about the lawfulness of action, understood as judgments about theirconformity to the comands of a sovereign are merely subjective value judgments.Kelsen acknowledges that the law can be consistently interpreted in this way, butin this case it is not regarded as normative:

The fact that the basic norm of a positive legal order may but need not be pre-supposed means: the relevant interhuman relationship may be, but need not be,interpreted as "normative," that is, as obligations, authorisations, rights, etc.constituted by objectively valid norms. It means further: they can be interpretedwithout such presupposition (i.e. without the basic norm) as power relations (i.e.relations between commanding and obeying or disobeying human beings)—inother words, they can be interpreted sociologically, not juristically. (PTL 218)

This is a key passage. Kelsen claims in effect that the concept of socialnormativity is not a concept of normativity at all. It does not allow the interpre-tation of law as imposing obligations, granting powers, rights, etc. It makes thelaw indistinguishable from the commands of a group of gangsters terrorizing thepopulation of a certain area.27 Only by using the concept of justified normativitycan one understand the true character of legal systems as normative systems.

Because Kelsen regards the concept of justified normativity as the onlyconcept of normativity, he considers law as an ideology. For law is normative, i.e.,justified and good for everyone who regards it as normative:

This is the reason why it is possible to maintain that the idea of a norm, an"ought," is merely ideological. . . . In this sense the law may be considered asthe specific ideology of a certain historically given power. (WJ 227)

One should be careful to distinguish between the two senses in which legalnorms are said by Kelsen to be objective. In the first sense they are objective forthey reflect a social reality, i.e., because they are normative in the sense of socialnormativity. In the second sense they are objective for they are normative in thesense of justified normativity; they are an ideology. The two senses are man-ifested in the following passage:

27 Kelsen uses this example for a different purpose in PTL 47.



ownloaded from


JOSEPH RAZ 105

If we conceive of the law as a complex of norms and therefore as an ideology,this ideology differs from other, especially from metaphysical, ideologies so far asthe former corresponds to certain facts of reality. . . . If the system of legalnorms is an ideology, it is an ideology that is parallel to a definite reality. (WJ227)

In other words, it is normative in the sense of justified normativity (i.e., it isobjective "ought") but also normative in the sense of social normativity (i.e.,corresponding to objectively ascertainable facts the meaning of which is thesubjective "ought"). This constant shift from one sense of objective to the otherhas not helped scholars to understand what concept of normativity Kelsen isusing.

To anyone regarding the law as socially normative, the question "whyshould the law be obeyed?" cannot be answered by pointing out that it is norma-tive. The law is normative because of certain social facts. It should be obeyed,if at all, for moral reasons. The normativity of the law and the obligation toobey it are distinct notions. Not so to people who admit only the concept ofjustified normativity. For them to judge the law as normative is to judge it tobe just and to admit that it ought to be obeyed. The concepts of the normativityof the law and of the obligation to obey it are analytically tied together. Kelsen,therefore, regards the law as valid, i.e., normative, only if one ought to obey it.

By "validity," the binding force of the law—the idea that it ought to be obeyedby the people whose behaviour it regulates—is understood. (WJ 257)

A norm referring to the behaviour of a human being is "valid" means that it isbinding—that an individual ought to behave in the manner determined by thenorm. (PTL 193)

These statements are unavoidable for a theorist working with the concept ofjustified normativity. They are misleading if the normativity of the law is ex-plained as social normativity only.

VI

The normativity of the law is justified normativity; its reason is the basicnorm which is, therefore, a justified norm. But it is not justified in any absolutesense. Kelsen believes in moral relativism. For him moral opinions are mattersof personal preference which cannot be rationally confirmed or refuted. Hencehe claims that the basic norm is presupposed, i.e., accepted, and the law is re-garded as normative only by people who consider it to be just:

But there is no necessity to presuppose the basic norm. . . . The system of normsthat we call "legal order" is a possible but not a necessary scheme of interpreta-tion. An anarchist will decline to speak of "lawful" and "unlawful" behaviour,of "legal duties" and "legal rights," or "delicts." He will understand socialbehaviour merely as a process whereby one forces the other to behave in confor-mity with his wishes or interests. . . . He will, in short, refuse to presuppose thebasic norm. {WJ 226/7)



ownloaded from


106 THE AMERICAN JOURNAL OF JURISPRUDENCE j

. . . an anarchist, for instance, who denied the validity of the hypothetical basic ;norm of positive law . . . will view its positive regulation of human relation- jship . . . as mere power relations. (GT 413) j

A communist may indeed not admit that there is an essential difference between ]an organisation of gangsters and a capitalistic legal order. . . . For he does not jpresuppose—as do those who interpret the coercive order as an objectively valid Inormative order—the basic norm.28 !

For an individual to presuppose the basic norm is to interpret the legal jsystem as normative, i.e., as just. For Kelsen all the values endorsed by one jindividual, all his moral opinions form necessarily one normative system based jon one basic norm. One can speak of an individual's normative system, or of the jnormative system from the point of view of a certain individual. Regarded from jone point of view every set of norms necessarily forms one consistent and unified jnormative order. The individual may think that some of the norms to which Ihe subscribes conflict. But this is a psychological not a normative fact. He may jfeel torn between two opposing modes of action.29 But it makes no sense to say jthat his normative system contains conflicting norms. It is of the essence of the ]concept of a normative system that it guides behavior; it guides the behavior of jthose persons who adopt the relevant point of view. But if conflicting norms are \assumed to be valid from one point of view, then they do not guide behavior for ithey point in opposing directions at the same time. Therefore all the norms held |

valid from one point of view necessarily form one consistent system: ji

It is logically not possible to assume that simultaneously valid norms belong to jdifferent, mutually independent systems. (GT 363) i

jIf two different systems of norms are given, only one of them can be assumed to 3be valid from the point of view of a cognition which is concerned with the jvalidity of norms. (GT 407) I

If one assumes that two systems of norms are considered as valid simultaneously 1from the same point of view, one must also assume a normative relation between jthem; one must assume the existence of a norm or order that regulates their Imutual relations. Otherwise insoluble contradictions between the norms of each Jsystem are unavoidable. (WJ 284) \

All this is incomprehensible if it is assumed that Kelsen uses the concept of \social normativity. It gains some plausibility if it is recognized that Kelsen isoperating throughout with a concept of justified normativity. Then it is possibleto appreciate Kelsen's reasons for maintaining that (1) for an individual toacknowledge that something is a norm is to accept it as just; (2) from anindividual's point of view all his moral beliefs form one normative system;

28 "Professor Stone and the Pure Theory of Law," ibid., p . 1144.29 Cf. GT 375. I n "Deroga t ion" published in Essays in Jurisprudence in Honor of Roscoe

Pound (New York : 1962) , and " L a w a n d Logic" published in Philosophy and Christianity(Amste rdam: 1965) , Kelsen re t racted his claim tha t valid norms a re necessarily consistent.Unfor tunate ly he d id not discuss there the reasons tha t led h i m to accept this doctrine in thefirst place, nor did he modify those par ts of his theory tha t depend on his previous doctrine, jsuch as the relation of law and morali ty, municipal and internat ional law, etc. Consequentlyhis theory of the normativi ty of law is intelligible and consistent only on the assumptiontha t valid norms are necessarily consistent.



ownloaded from


JOSEPH RAZ 107

(3) all the norms held valid from one point of view must be consistent. For thenormative interpretation of a person's belief is not a psychological but a rationalenterprise intended to elucidate the direction in which his views guide him.

One rather surprising consequence of this analysis is that the concept ofnormative systems loses much of its importance. The most important concept isthat of a point of view. It is logically true that from every point of view thereis just one normative system, and therefore just one basic norm. An individualaccepting the justice of his country's laws, but subscribing to further values notincorporated in the law accepts not two normative systems but one. His country'slaws are part of this system, though they can be viewed as a subsystem of histotal normative system. To assert that all the norms held valid from one view-point constitute one system with one basic norm is, of course, to assert more thanthat they do not conflict. It is to claim that they all derive their validity fromone basic norm. This is tacitly assumed rather than argued for by Kelsen.Granting however that the basic norm can confer validity on more than onenorm renders this a rather technical matter of no great importance.30

VII

So far the notion of a point of view was considered only as applying toparticular individuals; only points of view adopted by individuals were discussed.But there are also more complex points of view. One can ascribe a point ofview to a group of individuals, to a population, provided the population sharesthe same values. It is possible to consider hypothetical points of view, e.g., todiscuss what norms are adopted by individuals who accept all and only the lawsof their country as valid, without assuming that such individuals exist. One maycall this particular example of a hypothetical point of view the point of view ofthe legal man. Throughout his work Kelsen uses the concept of a point of view oflegal science. He talks about "the basic norm of a positive legal order, theultimate reason for its validity, seen from the point of view of a science of positivelaw." (WJ 262) He also says that the science of law presupposes the basic norm,but nevertheless is not committed to regard it as just.

There is, for Kelsen, a great difference between a personal point of viewand the scientific point of view. Norms judged as valid from a personal point ofview are those adopted as just. But legal theory is value free and norms judged tobe valid from its point of view are not thereby adopted as just. Any individualcan discuss the law sometimes from his personal viewpoint, sometimes from thepoint of view of legal science. Adopting the latter "even an anarchist, if he werea professor of law, could describe positive law as a system of valid norms, withouthaving to approve of this law." (PTL 218n.) At the same time the anarchistwill reject the validity of the law when considering it from his personal point ofview. What is the nature of the point of view of legal science? How can it bevalue free, and at the same time regard the law as normative in the only senseadmitted by Kelsen, i.e., that of justified normativity? One tempting explanationis that legal theory asserts that a legal system exists only if adopted, from the

30 See footnote 14 above.



ownloaded from



personal viewpoint, by the population to which it applies, and describes the lawas seen from this point of view. Kelsen, however, rejects this interpretation:

The doctrine of the basic norm is not a doctrine of recognition as is sometimeserroneously understood. According to the doctrine of recognition positive lawis valid only if it is recognised by the individuals subject to it, which means: ifthese individuals agree that one ought to behave according to the norms of thepositive law. This recognition, it is said actually takes place, and if this cannot beproved it is assumed, factitiously as a tacit recognition. (PTL 218n.)

The pure theory of law does not assert or assume any attitude of the populationto the law. A legal system exists if it is effective and this does not entail ac-ceptance as morally just.

An alternative interpretation would be that legal science describes not thepopulation's point of view but the point of view of the hypothetical legal man,i.e., of a person accepting from a personal viewpoint all and only the legal norms,without assuming that such a person actually exists. Such an interpretation issupported by various passages like the following one:

The Pure Theory describes the positive law as an objectively valid normativeorder and states that this interpretation is possible only under the condition thata basic norm is presupposed. . . . The Pure Theory, thereby characterizes thisinterpretation as possible, not necessary, and presents the objective validity ofpositive law only as conditional—namely conditioned by the presupposed basicnorm. (PTL 217-218)

This interpretation comes very near the core of Kelsen's doctrine but it isnot free from difficulties. On this interpretation the Pure Theory itself does notadopt any point of view; it does not presuppose any basic norm. It merelydescribes the point of view of the legal man and the basic norm he adopts. IsKelsen mistaken when regarding legal science as having a point of view andpresupposing a basic norm? Does he use these terms in a completely differentsense when applied to legal science? Kelsen himself is unsure of his position onthis crucial point for occasionally he can be seen to waver.31 The difficulty resultsfrom the fact that Kelsen does not distinguish between the science of law dealtwith by jurists talking about the law, and the activities of lawyers and judgesusing the law. He considers both under the one title of juristic cognition. Hewants to claim that:

By offering this theory of the basic norm, the Pure Theory of Law does notinaugurate a new method of legal cognition. It merely makes conscious whatmost legal scientists do, at least unconsciously, when they interpret the mentioned ;

facts not as causally determined, but instead interpret their subjective meaningas objectively valid norms. . . . The Theory of the basic norm is merely theresult of analysis of the procedure which a positivistic science of law has alwaysapplied. (PTL 204-5)

31 Compare his treatment of the anarchist in PTL 278n. with his discussion of thesame problem in previous and subsequent publications. See also his explicit discussion of thequestion whether the Pure Theory presupposes the basic norm PTL 204n.



ownloaded from


JOSEPH RAZ 109

Kelsen, however, makes a similar claim not only about legal scientists, but alsoabout legal practitioners. The following passage applies to lawyers as well aslaw professors:

That the basic norm really exists in the juristic consciousness is the result ofsimple analysis of actual juristic statements. The basic norm is the answer tothe question: how—and that means under what condition—are all these juristicstatements concerning legal norms, legal duties, legal rights, and so on, possible.(GI 116-7)

It can perhaps be claimed that legal scientists do not adopt a point of view;they do not regard the law as valid but simply describe what is considered validfrom the point of view of some other person, i.e., the legal man. But legalpractitioners do not describe what somebody else regards as valid but themselvesconsider the law as valid, refer to it as valid, and apply it to particular cases.They cannot be said merely to describe a point of view; they actually adopt one.Yet when acting professionally they need not express their personal point of view.An anarchist can be not only a law teacher, but also a lawyer. As a lawyer headopts and expresses a professional point of view, the point of view of legalscience, as Kelsen calls it, which does not commit him, and is understood not tocommit him to the view that the law is just.

For Kelsen the legal scientist, as well as the legal practitioner, not onlydescribes a point of view, but actually adopts one. Legal science regards thelaws as valid and hence presupposes the basic norm. The point of view oflegal science is that of the legal man. It is not merely described but actuallyadopted, and it is adopted in a special sense.

If a man were actually to adopt the point of view of the legal man he wouldadopt the law as his personal morality, and as exhausting all the norms he acceptsas just. Legal science does not accept the point of view of the legal man in thissense. Legal science is not committed to regard the law as just. It adopts thispoint of view in a special sense of "adopt." It is professional and uncommittedadoption. Legal science presupposes the basic norm not as individuals do—i.e.,by accepting it as just but in this special professional and uncommitted sense.

VIII

The analysis of Kelsen's theory of normativity and of the basic normclarifies some of Kelsen's fundamental theses. It explains his insistence that thebasic norm presupposed by legal science authorizes the first constitution and doesnot refer to any nonlegal authority like God or nature. Individuals from theirpersonal point of view are indeed unlikely to adopt this norm as their basicnorm. They are likely to appeal to God or to nature or some other moral normas their basic norm. But this is irrelevant to legal science which has a specialpoint of view, that of the legal man, which it adopts in the special professionalsense of adopting. Legal science, therefore, presupposes, in the special sense, thisparticular basic norm, for it is concerned as a science only with positive law.

On the present analysis Kelsen's position on the relation of law and morality



ownloaded from



is seen as entailed by the rest of his theory: "When positive law and moralityare asserted to be two distinct mutually independent systems of norms, this meansonly that the jurist, in determining what is legal, does not take into considerationmorality, and the moralist, in determining what is moral, pays no heed to theprescriptions of positive law. Positive law and morality can be regarded as twodistinct and mutually independent systems of norms, because and to the extentthat they are not conceived to be simultaneously valid from the same point ofview." (WJ 284)32 Kelsen is discussing here the professional points of view ofthe legal and moral scholar. He is not denying that a legal order can incorporatemoral rules or that morality can incorporate the law and regard it as morallyvalid. Nor is he denying that an individual from his personal viewpoint canregard both legal and nonlegal norms as valid. To the individual they will allform part of his personal normative system, based on his personal point of view.From the point of view of legal science, however, only the law is valid, just asfrom the point of view of ethical theories only moral norms are valid.

Kelsen's insistence that from a single point of view there can be just onenormative system and just one basic norm explains why his theory of normativityin itself entails that there is just one basic norm to every legal system. Insofaras basic norms are necessary only to enable us to consider the law as normative,there is nothing to prevent one from postulating several basic norms relating toone system. One basic norm can make the criminal law normative, another willrelate to the law of property, etc. However, on Kelsen's theory this will meanthat there is no one point of view from which the legal system is considered butseveral, each corresponding to every one of the basic norms.

Furthermore, since there is one general science of law, it follows, on theKelsenian premise of the unity of a point of view, that all the laws form but onelegal system. The ultimate reason for Kelsen's theory of the unity of national andinternational law is his theory of normativity. Since all the norms held valid fromone point of view form one normative system, it follows without further argu-ment that since both national and international law are considered valid from thepoint of view of one legal science, they are parts of one system. All that remainsto do is to explain how they should be thus understood. "The unity of nationaland international law is an epistemological postulate. A jurist who accepts bothas sets of valid norms must try to comprehend them as parts of one harmonioussystem." (GT 373) "Once it is conceded that national and international law areboth positive laws, it is obvious that both must be valid simultaneously from thesame juristic point of view. For this reason, they must belong to the samesystem." (WJ 284) "If both systems are considered to be simultaneously validorders of binding norms, it is inevitable to comprehend both as one system."(PTL 332 emphasis added)

IX

This analysis of Kelsen's doctrine of the basic norm in its function inestablishing the normativity of law is based on the claim that though Kelsen

32 Compare also GT 374, 490.



ownloaded from


JOSEPH RAZ 111

rejects natural law theories, he consistently uses the natural law concept ofnormativity, i.e., the concept of justified normativity. He is able to maintainthat the science of law is value free by claiming for it a special point of view, thatof the legal man, and contending that legal science adopts this point of view;that it presupposes its basic norm in a special, professional, and uncommittedsense of presupposing. There is, after all, no legal sense of normativity, but thereis a specifically legal way in which normativity can be considered.

This is the core of Kelsen's theory. To it he adds the further claim that allthe norms held valid from one point of view must be considered as one con-sistent system. This further thesis can and should be criticized and rejected. Itleads to a distorted view of the relations between the various values subscribedto by an individual. It also leads to a distortion of the common concept of alegal system. This is not the place to examine the inadequacies of Kelsen's viewof personal morality. Kelsen's failure to account for the concept of a legal systemis treated elsewhere.33 It is, however, important to remember that it is possibleto reject Kelsen's identification of the concepts of a normative system and anormative point of view while retaining the other basic tenets of Kelsen's theoryof normativity and the basic norm.

It seems to me that Kelsen's theory is the best existing theory of positivelaw based on the concept of justified normativity. There is, however, a differentconcept of normativity, that of social normativity. An explanation of the lawbased on this concept will have no use for the concept of the basic norm. Thebasic norm is needed to bridge the gap between facts and norms, between the"is" and the "ought." But this gap exists only if norms are understood as justifiednorms. Once they are understood as social norms then the gap disappears.Legal norms themselves become facts, and their explanation can be carried outwithout recourse to the basic norm. Kelsen himself, as we have seen, admits asmuch.34 The fact that the basic norm is not consciously presupposed by legalscholars and practitioners becomes, therefore, a considerable argument in favorof explaining the law in terms of social normativity rather than Kelsen's ex-planation in terms of justified normativity. The necessity to ascribe to legalscholars and practitioners a special point of view—that of the legal man—and toregard them as presupposing the basic norm in a special professional way compli-cates Kelsen's theory still more. An explanation in terms of social normativity isfree of these complexities and should be preferred as being simpler. All themore so as Kelsen does never explain what is the special sense in which lawyersand jurists presuppose the basic norm. This omission may lead one to suspectthat they regard the law as socially normative, as a fact about the society inwhich they live. Does not Kelsen himself say that "the principle of effectivenessis the general basic norm that juristic thinking assumes whenever it acknowledgesa set of norms as the valid norms of a particular state"? (WJ 224) Would it bewrong to regard this statement as an unconscious admission that juristic thinkinginterprets the law in terms of social normativity?

s s Cf. Section II above and Hart: "Kelsen's Doctrine of the Unity of Law," ibid.34 Cf. Section III above.



ownloaded from


kelsen's theory of the basic norm

Documents